NORTH CAROLINA JOURNAL OFLAW & TECHNOLOGY

Volume 12Issue 2 Spring 2011 Article 5

3-1-2011

U.S. v. Warshak: Will Fourth AmendmentProtection Be Delivered to Your InboxCasey Perry

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Recommended CitationCasey Perry, U.S. v. Warshak: Will Fourth Amendment Protection Be Delivered to Your Inbox, 12 N.C. J.L. & Tech. 345 (2011).Available at: http://scholarship.law.unc.edu/ncjolt/vol12/iss2/5

NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY

VOLUME 12, ISSUE 2: SPRING 2011

U.S. V. WARSHAK: WILL FOURTH AMENDMENT PROTECTION BEDELIVERED TO YOUR INBOX?

Casey Perry*

The Warshak decision is a long-overdue federal case extendingFourth Amendment protection to electronic communications storedwith third parties. In holding that citizens have a "reasonableexpectation of privacy" for stored e-mail messages, the SixthCircuit decision represents a shift towards a stricter interpretationof the Fourth Amendment as it applies to modern forms ofcommunication. Applauded by civil liberties and privacyprotection groups, Warshak may pave the way for communicationover other digital means (e.g., cloud computing, Facebook,LinkedIn) to obtain Fourth Amendment protection, throughapplication of a two-prong test to determine the existence of areasonable expectation of privacy. Warshak also highlightsblatant loopholes in the current federal statutory scheme,underscoring the need for revision of the Stored CommunicationsAct in order to bring the law in line with modern technology.

I. INTRODUCTION

There are few concepts as deeply entrenched in American lawas individual privacy. The fervent reverence afforded to privacy asa fundamental human right is reflected in our Constitution,particularly in the Bill of Rights.' One of the most important

* J.D./M.B.A. Candidate, University of North Carolina School of Law, 2012.Though the U.S. Constitution contains no explicit right to privacy, many of

the first ten amendments protect particular aspects of individual privacy. Forexample, the Third Amendment safeguard against the nonconsensual quarteringof soldiers is often interpreted as the Founders' expression of protecting privacy,as are the individual liberties enumerated in the First Amendment. See DougLinder, The Right of Privacy, EXPLORING CONSTITUTIONAL LAW,http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html(last visited Feb. 23, 2011) (maintaining that the Bill of Rights reflects theFramers' concern for the protection of individual's privacy rights).

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safeguards of individual privacy is found in the FourthAmendment right of the people to be secure "in their persons,houses, papers, and effects, against unreasonable searches andseizures," requiring that warrants be issued only upon a showing ofprobable cause and specifying "the place to be searched, and thepersons or things to be seized." 2 While the language of the FourthAmendment makes it clear that the Founders intended to limit theuse of searches and seizures to those that are reasonable,' whatconstitutes a "reasonable" search and seizure has been extensivelydebated.4

2 U.S. CONsT. amend. IV. While some "highly cherished freedoms, such asthose relating to speech, religion, press and trial by jury were lumped in togetherwith others," the prohibition against unreasonable searches and seizures wasconsidered important enough to constitute a single amendment. Charles A.Reynard, Freedom from Unreasonable Search and Seizure-A Second ClassConstitutional Right?, 25 IND. L.J. 259, 273 (1950).

See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98MICH. L. REV. 547, 551 (1999) (discussing the Founders' intent to limit searchesand seizures and condemn the use of general warrants).

4 Compare Dorothy K. Kagehiro, Ralph B. Taylor & Alan T. Harland,Reasonable Expectation of Privacy and Third-Party Consent Searches, 15 LAW

& HUM. BEHAV. 121, 122 (1999) (stating that the Fourth Amendment indicatesthat searches are only "reasonable" if they are conducted under a warrantrepresenting judicial determination of probable cause or, alternatively, if theyfall under an exception to the warrant requirement made by the United StatesSupreme Court over the years), and Reynard, supra note 2, at 276 (contendingthat the Fourth Amendment offers dual guarantees, both that warrants shall beissued with probable cause and particularity and that no unreasonable searchesor seizures shall be made, even with a warrant), with Davies, supra note 3, at551 (opining that the Founders did not consider the application of"unreasonable" to unwarranted searches at all, but meant for the standard toapply to the "inherent illegality of any searches or seizures . . . under generalwarrants."), David A. Sklansky, The Fourth Amendment and Common Law, 100COLUM. L. REV. 1739, 1740 (2000) (arguing that modern courts determinewhether a search or seizure is "unreasonable" based on "the realities of modemlaw enforcement rather than the eighteenth-century origins of the FourthAmendment"), and Tracey Maclin, The Central Meaning of the FourthAmendment, 35 WM. & MARY L. REV. 197, 201 (1993) (arguing in support ofthe theory that the Fourth Amendment "merely requires rational police behavior. . ."). But see Anthony G. Amsterdam, Perspectives on the Fourth Amendment,58 MINN. L. REV. 349, 395 (1974) (stating succinctly that "its language is no

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Today, the "reasonable expectation of privacy" test is used todetermine whether a search meets the reasonableness requirement,and to define when law enforcement's finding and taking ofproperty is a "seizure" protected by the Fourth Amendment.' AsJustice Harlan explained in Katz v. United States, the expectationof privacy test that has emerged is twofold, requiring first, that aperson "have exhibited an actual (subjective) expectation ofprivacy and, second, that the expectation be one that society isprepared to recognize as 'reasonable." 6 Applying this test, courtshave found that certain mediums of communication, including thetelephone and postal mail, are protected by a reasonableexpectation of privacy.' These decisions require law enforcementto obtain a valid warrant based on probable cause before seizingsuch communications.'

Today, as people increasingly turn to digital means ofcommunication in both their private and professional lives, manyhave called for the expansion of Fourth Amendment protection toincorporate a modern interpretation of an individual's "papers andeffects."' Despite this push for the Fourth Amendment to keep

help and neither is its history" and that we can glean a better understanding of"reasonableness" from the origin of the Fourth Amendment).

"I join the opinion of the Court, which I read to hold only (a) that ... aperson has a constitutionally protected reasonable expectation of privacy; (b)that electronic as well as physical intrusion into a place that is in this senseprivate may constitute a violation of the Fourth Amendment; and (c) that theinvasion of a constitutionally protected area by federal authorities is, as theCourt has long held, presumptively unreasonable in the absence of a searchwarrant." Katz v. United States, 389 U.S. 347, 360-61 (1967) (Harlan, J.,concurring).

6 Id. at 361 (Harlan, J., concurring).7 See id. at 352-59 (holding that the practice of wiretapping telephone calls is

subject to the Fourth Amendment, because of the "vital role that the publictelephone has come to play in private communication"); United States v.Jacobsen, 466 U.S. 109, 114 (1984) ("Letters and other sealed packages are inthe general class of effects in which the public at large has a legitimateexpectation of privacy . . . .").

8 See, e.g., Jacobsen, 466 U.S. at 114 ("[W]arrantless searches of [the generalclass of effects in which the public at large has a legitimate expectation ofprivacy] are presumptively unreasonable.").

9 See, e.g., Andrew William Bagley, Don't Be Evil: The Fourth Amendmentin the Age of Google, National Security, and Digital Papers and Effects, 21

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pace with evolving technology,o there has been little directionfrom the federal courts regarding the reasonable expectation ofprivacy for di ital communication, including emails. However, onDecember 14' , 2010, the Sixth Circuit of Appeals took a criticalfirst step towards defining these issues, addressing the applicabilityof the Fourth Amendment protection to emails stored with internetservice providers ("ISPs")" in the landmark case of United Statesv. Warshak.12

In Warshak, the Sixth Circuit held that the reasonableexpectation of privacy for communication via telephone and postalmail extends to emails stored with third parties, bringing storedemails within the protection of the Fourth Amendment." As theonly federal appellate decision to rule on the privacy of storedemails,14 Warshak prompts a series of questions, not only about the

ALB. L.J. Sci. & TECH. 153 (2011) (urging an update of the Fourth Amendmentto reflect the reality that papers and effects are now often digital in nature).

10 "To withdraw protection of this minimum expectation would be to permitpolice technology to erode the privacy guaranteed by the Fourth Amendment."Kyllo v. United States, 533 U.S. 27, 34 (2001).

" Susan Freiwald, Susan Freiwald on United States v. Warshak: Sixth CircuitBrings Fourth Amendment Protection to Stored Email, At Last, CONCURRINGOPINIoNS BLOG, posted by Danielle Citron (Dec. 17, 2010, 3:15 PM),http://www.concurringopinions.com/archives/2010/12/susan-freiwald-on-united-states-v-warshak-sixth-circuit-brings-fourth-amendment-protection-to-stored-email-at-last.html [hereinafter Friewald, Susan Friewald on United States v.Warshak]. The Stored Communications Act, a federal law addressing storedwire and electronic communications, is discussed infra Part II. Internet ServiceProviders ("ISPs") are businesses or organizations that offer Internet access,often in the form of broadband or dial-up Internet access. What is an InternetService Provider (ISP)?, INDIANA UNIVERSITY KNOWLEDGE BASE,

http://kb.iu.edu/data/ahoz.html (last visited Feb. 25, 2011).12 631 F.3d 266 (6th Cir. 2010).1 Margaret Grazzini, U.S. v. Warshak: The Constitutionality of Search and

Seizure of Emails, THE BERKELEY TECH L.J. BOLT (Dec. 23, 2010),http://btlj.org/2010/12/23/u-s-v-warshak-the-constitutionality-of-search-and-seizure-of-e-mails/; see also Warshak, 631 F.3d at 288 (holding that thegovernment may not compel emails from an ISP without "a warrant based onprobable cause").

14 Kevin Bankston, Breaking News on EFF Victory: Appeals Court Holdsthat E-Mail Privacy Protected by Fourth Amendment, ELECTRONIC FRONTIERFOUNDATION (Dec. 14, 2010), https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds.

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future of privacy in electronic communications, but also about theefficiency and effectiveness of current federal privacy laws relatingto the government's ability to search and seize stored electroniccommunications. 15

In order to fully understand the Warshak decision and itsimplications, Part II of this Recent Development will provide abrief explanation of the Stored Communications Act,"6 a federalstatute addressing electronic communication privacy critical to theWarshak opinion. Part III will then introduce the Warshak"decision itself, including the prior history of the case. Part IVdiscusses the potential need for Congressional reform of the StoredCommunications Act, based on loopholes highlighted by theWarshak investigation. Finally, Part V will look towards the futureof the Warshak decision and its implications for the rest of thecountry, followed by a brief conclusion.

II. THE STORED COMMUNICATIONS ACT

Supplementing the Fourth Amendment, there are three primaryfederal statutes that serve to protect individuals' privacy in anetwork environment, collectively known as the ElectronicCommunications Privacy Act ("ECPA").'" The StoredCommunications Act, the Wiretap Act, and the Pen Registerstatute regulate criminal investigators' access to both in-transitelectronic communications and stored content, including emailsstored with ISPs. The Stored Communications Act, regulating

1 See id. (advocating for Congress to revise the Stored Communications Actto clearly require warrants to obtain emails from ISPs in light of the Warshakruling).

16 The Stored Communications Act is codified at 18 U.S.C. §§ 2701-12(2006) and discussed infra Part II.

7 631 F.3d 266.'8 See ORIN S. KERR, COMPUTER CRIME LAW 456 (2d ed. 2006).19 Id. at 456. The Wiretap Act, 18 U.S.C. §§ 2510-22, "regulates efforts to

collect evidence by intercepting the contents of Internet communications in realtime." KERR, supra note 18, at 256. The Pen Register statute, 18 U.S.C.§§ 3121-27, regulates "collecting evidence by obtaining non-contentinformation in real time." Id. at 456. The Wiretap Act and the Pen Registerstatute were not referenced in the Warshak opinion and are thus outside the

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access to stored content, was particularly relevant to the Warshakcase and thus requires a brief explanation.

A. The Structure of the Stored Communications Act

Passed in 1986 as part of the Electronic CommunicationsPrivacy Act of 1986,20 the Stored Communications Act ("SCA") isa federal statute that regulates access to stored electroniccommunications.2 1 The SCA regulates retrospective surveillance,22

specifically content that is in storage with an ISP. 23 Two of theprincipal provisions of the SCA are found in sections 2702 and2703, which regulate voluntary disclosures and compelleddisclosures, respectively.2 4 In section 2703, the SCA imposes strict

scope of this Recent Development. For more on these statutes, see id at 461-97(on the Wiretap Act) and 497-510 (on the Pen Register statute).

20 The Electronic Communications Privacy Act of 1986 was created to fillgaps in existing privacy law created by changing technologies, specificallycomputer network technologies, amounting to "a statutory version of the FourthAmendment for computer networks." Id. at 458-59.

21 Orin S. Kerr, A User's Guide to the Stored Communications Act, and aLegislator's Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1208 (2004).

22 Kerr describes retroactive surveillance as "access to stored communicationsthat may be kept in the ordinary course of business by a third-party provider"and gives the following example:

[I]f an FBI agent issues a subpoena ordering an ISP to disclose basicsubscriber information about a particular Internet account, that accessis a type of retrospective surveillance. The ISP will have generatedthat record at some time in the past in the ordinary course of itsbusiness; the subpoena seeks the disclosure of a stored record thatalready has been created.

KERR, supra note 18, at 459. In contrast, prospective surveillancerefers to "obtaining communications still in the course oftransmission." Id. The Wiretap Act and the Pen Register statute bothdeal with prospective surveillance. Id.

23 Id. at 510. The SCA does not apply to communication that is in transit.See, e.g., Dorothy Higdon Murphy, United States v. Councilman and the Scopeof the Wiretap Act: Do Old Laws Cover New Technologies?, 6 N.C. J.L. &TECH. 437, 459 (2005) ("The SCA, however, does not apply to messages thatare still in transmission. Electronic messages that are in transmission arecovered by the Wiretap Act.").

24 KERR, supra note 18, at 511. Other important sections include § 2705, thedelayed notice provision, § 2708, the remedies limitation, and § 2711, whichincludes definitions. Id.

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rules on when the government may compel service providers todisclose information they are storing on their subscribers. 25 TheSCA creates similar limits on voluntary disclosures to thegovernment by ISPs in section 2702, heightening the protectionprovided by the private search doctrine of the FourthAmendment.26 According to the United States Department ofJustice, the SCA serves "to protect and regulate the privacyinterests of network users with respect to government . . . and the

"127 ~cutworld at large, yet courts have had a difficult time interpretingand applying the statute, due in no small part to its density andcomplexity. 28

B. Government Access under the SCAIn regulating government access to emails, the SCA offers

various levels of protection based on the length of time the emailhas been stored electronically and the type of service in which the

25 Id "Although the Fourth Amendment may require no more than asubpoena to obtain e-mails, the statute confers greater privacy protection." Id.26 d

27 COMPUTER CRIME AND INTELLECTUAL PROP. SECTION, CRIMINAL Div., U.S.DEP'T OF JUSTICE, SEARCHING AND SEIZING COMPUTERS AND OBTAININGELECTRONIC EVIDENCE IN CRIMINAL INVESTIGATIONS 115 (3rd ed.2009), available at http://www.cybercrime.gov/ssmanual/ssmanual2009.pdf.

28 See, e.g., Kerr, supra note 21, at 1208 ("But courts, legislators, and evenlegal scholars have had a very hard time understanding the method behind themadness of the SCA. The statute is dense and confusing, and that confusion hasmade it difficult for legislators to legislate in the field, reporters to report aboutit, and scholars to write scholarship in this very important area"); United Statesv. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998) (quoting Steve Jackson Games,Inc. v. United States Secret Service, 36 F.3d 457, 462 (5th Cir. 1994)) (referringto the provisions of the ECPA as "famous (if not infamous) for [their] lack ofclarity" and the "complex, often convoluted" intersection of the SCA and theWiretap Act); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir.2002) (describing the statutory framework as "ill-suited to address modemforms of communication" like a secure website); Lieutenant Colonel LeEllenCoacher, Permitting Systems Protection Monitoring: When the GovernmentCan Look and What It Can See, 46 A.F. L. REV. 155, 171 (1999) (commentingthat the intent of Congress to cover email transmissions via the ECPA wasobscured by the complexity of the statutory language).

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email is held. 29 For example, emails stored with an electroniccommunication service for less than 180 days may be acquired"only pursuant to a warrant." 30 Emails stored with a remotecomputing service and those stored with an electroniccommunication service for more than 180 days require thegovernment to either obtain a search warrant, an administrativesubpoena, or a court order.' Though probable cause is required toobtain a search warrant, the SCA allows subpoenas and courtorders to be issued under much lower standards than those of theFourth Amendment, requiring only that the government entityoffer "specific and articulable facts" showing "reasonablegrounds" to believe that the contents of the communication "arerelevant and material to an ongoing criminal investigation."3 2

III. UNITED STATES V. WARSHAK

The Warshak case was not one, but a series of cases, bothcriminal and civil. The Sixth Circuit case at issue stems from

29 United States v. Warshak, 631 F.3d 266, 283 (6th Cir. 2010). Emails maybe held with either an electronic communication service or a remote computingservice. Id. The U.S. Code defines an electronic communication service as"any service which provides to users thereof the ability to send or receive wireor electronic communications." 18 U.S.C. § 2510(15). A remote computingservice is defined as "the provision to the public of computer storage orprocessing services by means of an electronic communications system." 18U.S.C. § 2711(2). If these definitions seem less than clear, you are not alone.See supra text accompanying note 28.

30 18 U.S.C. § 2703(a).3 Warshak, 631 F.3d at 283. The court in In re Grand Jury Subpoenas Dated

Dec. 10, 1987 distinguished subpoenas from search warrants:Subpoenas are not search warrants. They involve different levels ofintrusion on a person's privacy. A search warrant allows the officer toenter the person's premises, and to examine for himself the person'sbelongings. The officer, pursuant to the warrant, determines what isseized.... Service of a forthwith subpoena does not authorize an entryinto a private residence. Furthermore, the person served determineswhether he will surrender the items identified in the subpoena orchallenge the validity of the subpoena prior to compliance.

926 F.2d 847, 854 (9th Cir. 1991).32 18 U.S.C. § 2703(d).

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Warshak's appeal from his May 2008 conviction by the U.S.District Court for the Southern District of Ohio."

A. The Controversial Seizure of Warshak's Emails

The Warshak case arose out of a criminal investigationinvolving Stephen Warshak, his mother Harriet,3 4 and themanagement of his mail-order nutritional supplements business,Berkeley Premium Nutraceuticals, Inc. ("Berkeley")." From allaccounts, Warshak ran a shady business centered around the saleof its flagship product, the infamous Enzyte male enhancementsupplement. 6 In addition to the now infamous "Smilin' Bob"commercials," Berkeley's advertising techniques for Enzyteincluded a bogus independent customer study," a spuriouscustomer satisfaction rating," and the lauding of impressive but

33 United States v. Warshak, 562 F. Supp. 2d 986 (S.D. Ohio 2008).34 Warshak's company employed "approximately 12 to 15 people, nearly all

of whom were Warshak's friends and family." Warshak, 631 F.3d at 276.Harriet was Warshak's mother as well as an employee of the business, in whichcapacity she processed credit card payments. Id. Warshak also employed hissister, who worked in Customer Care, and his brother-in-law, who served asPresident of the company. Id.

35 Warshak did not own just one, but "a handful" of companies. Id One, TCIMedia, Inc., sold advertisements in sporting venues, while other assorted"nutraceuticals" companies operating under various names were later aggregatedto form Berkeley. Id. In addition to herbal supplements, the companies alsosold a product marketed to mask drug traces in urine tests, called Keflex. Id at276 n.1.

36 Id. at 276-77. Enzyte, purported to "increase the size of a man's erection,"pushed Berkeley's annual sales to nearly $250 million in 2004. Id. at 276.

37 "Smilin' Bob" was a character featured in Enzyte commercialscharacterized by an "exaggerated smile .. . presumably the result of Enzyte'sefficacy." Id. at 277. A clip of Smilin' Bob is still available on the Enzytewebsite. ENZYTE, http://www.enzyte.com (last visited Mar. 13, 2011).

38 The study, published in a number of men's interest magazines andreferenced in radio advertisements and on the company website, claimed that"over a three-month period, 100 English-speaking men who took Enzyteexperienced a 12 to 31% increase in the size of their penises." Warshak, 631F.3d at 277. A Berkeley employee, James Teegarden, later testified thatWarshak instructed him to fabricate the survey with numbers he "plucked . . .out of the air." Id.

39 Though Berkeley boasted a 96% satisfaction rating for Enzyte, Teegardentestified that this, too, was bogus. Id. Warshak had his employee "harvest 500

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fictitious doctors that supposedly developed the drug.4 0 Berkeleyemployed the use of a continuity or negative-option auto-shipprogram to distribute their products, 4' but customers were neithergiven notification of their enrollment nor required to authorize theadditional charges.42 Customers that attempted to obtain a refundwere forced to deal with Berkeley's refund policy to "make it asdifficult as possible." 43 Additionally, Berkeley scammed theircredit-card processors and the merchant banks from which they

names from the customer database," marking 'X' by either "satisfied or verysatisfied on say 475 of those" in order to reach the phony satisfaction statistic.Id.

40 Dr. Fredrick Thomkins, "a physician with a biology degree from Stanford,"and Dr. Michael Moore, "a leading urologist from Harvard," were credited inprint and radio advertisements for the development of Enzyte. Id.Unfortunately for Berkeley, investigators who contacted the alleged doctors'alma maters found that neither man existed. Id.

41 After a customer ordered a free trial of a product, he would continue toreceive shipments-and credit card charges-until he opted out. Id at 277-78."The shipments and charges would continue until the customer decided towithdraw from the program, which required the customer to notify thecompany." Id.

42 After over 1,500 complaints to the Better Business Bureau, Berkeleyclaimed to have added disclosure language into their sales scripts and changedtheir notification policies, but the evidence suggests these measures weresuperficial at best. Id. at 278-79. In some instances, customers were enrolled inthe auto-ship program after explicitly declining:

For example, in November 2003, Berkeley hired a company calledWest to handle "sales calls that were from . . . Avlimil or Enzyteadvertisements." During the calls, West's representatives askedcustomers if they wanted to be enrolled in the auto-ship program, andover 80% of customers declined. When Warshak learned what washappening, he issued instructions to "take those customers, even if theydecline[d], even if they said no to the Auto-Ship program, go aheadand put them on the Auto-Ship program." A subsequent email betweenBerkeley employees indicated that "all [West] customers, whether theyknow it or not, are going on [auto-ship]." As a result, numeroustelephone orders resulted in unauthorized continuity shipments.

Id. at 279.43 Id. at 280 n.10. Some customers were even told they would have to present

a notarized statement indicating that they had seen "no size increase," based onthe "admittedly ingenious idea" that customers would be too embarrassed toobtain such a notarization. Id.

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obtained their lines of credit by falsifying applications" and usingelaborate ploys to keep Berkeley's chargeback ratio45 artificiallylow. Eventually, these questionable practices led to the September2006 grand jury indictment of Warshak, Harriet, and others on acombined 112 counts, including conspiracy to commit mail, wire,and bank fraud; mail fraud; bank fraud; making false statements tobanks; money laundering; misbranding; and conspiracy to obstructa Federal Trade Commission ("FTC") proceeding.46

In the process of obtaining evidence to support these charges,government agents became interested in emails stored withWarshak's ISP, NuVox.4 7 In October 2004, operating undersection 2703(f) of the SCA,48 the government formally requested

"4After having an account terminated with the Bank of Kentucky, Warshakoften used his mother to apply for merchant accounts at other banks, falselylisting her as CEO and 100% owner of Berkeley. Id. at 280. Other times,Warshak would falsify applications by claiming he had never been previouslyterminated from a merchant account. Id.

45 A chargeback, occurring when a customer contacts the credit card companyand successfully disputes a charge, is undesirable for merchant banks,representing increased financial risk from the merchant company. Id. at 279-80.Typically, if chargebacks result from more than 1% of a merchant company'stransactions, their account will be terminated. Id at 280. Berkeley used astrategy called "double-dinging," in which they split up a single transaction intomultiple charges, in order to inflate the denominator (the number oftransactions) of their chargeback ratio. Id at 280. Other times, they wouldcharge and then refund randomly selected customers, blaming a "computerglitch" if anyone complained. Id. at 281.

46 Id. at 281. The 112 charges were spread amongst the three defendants inthis case (Steven Warshak, owner and operator of Berkeley, Harriet Warshak,the mother of Steven and an employee of Berkeley, and TCI Media, Inc.,another company owned by Steven), as well as "several others with variouscrimes related to Berkeley's business." Id.

47 Id. at 283.48 18 U.S.C. § 2703(f) (2006). Section 2703 regulates compelled disclosures

of stored communications. Specifically, § 2703(f lists the requirements topreserve evidence:

(1) In general.-A provider of wire or electronic communicationservices or a remote computing service, upon the request of agovernmental entity, shall take all necessary steps to preserve recordsand other evidence in its possession pending the issuance of a courtorder or other process.

Id.

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that NuVox preserve all of Warshak's future incoming andoutgoing emails.49 in subsequent months, NuVox preserved copiesof approximately 27,000 of Warshak's emails without hisknowledge or permission, pursuant to the government's directive."o

After obtaining a subpoena under the SCA in January 2005, thegovernment compelled NuVox to turn over the emails it had begunpreserving in October 2004, as well as any additional emails inWarshak's account," a total of approximately 27,000 emails.52

Warshak did not receive notice of the subpoena or of thecorresponding preservation of his emails until May 2006."

Warshak's subsequent motion to exclude the emails obtainedfrom NuVox from being used as evidence was denied,54 freeing thegovernment to use them at trial. The contents of the emails turnedover to the government contained "sensitive and sometimesdamning substance"55 which was used to convict the defendants onthe majority of the 112 charges, including mail fraud, bank fraud,and money laundering. 6 Warshak was sentenced to twenty-fiveyears imprisonment and ordered to pay $459,450,000 in proceeds-money-judgment forfeiture, $44,876,781.68 in money-laundering-

49 Warshak, 631 F.3d at 283. Warshak accessed his emails using Post OfficeProtocol ("POP"), in which emails are generally deleted from the ISP serverwhen they are downloaded to the subscriber's personal computer. Id. at 283n.14.

50 id.s' These "additional emails" were obtained pursuant to an ex parte court order

under § 2703(d) of the SCA. See 18 U.S.C. § 2703(d).52 Warshak, 631 F.3d at 283.

54 Id at 281.5 5 1d at 284.56 Id. at 281. Warshak was acquitted of fifteen of these charges, including

making false statements to banks and misbranding offenses. Warshak's mother,Harriet, was also acquitted of making false statements to banks. Id.

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judgment forfeiture, and a fine of $93,000."7 The defendantsappealed the district court ruling to the Sixth Circuit."

" Id. at 281-82. Harriet was held jointly and severally liable for both of theforfeiture judgments, sentenced to twenty-four months in prison, and made topay an $800 special assessment. TCI was put on probation for five years andfined $160,000 with a special assessment of $6,400. Id.

58 While the 112-count indictment was awaiting trial, Warshak brought a civilsuit against the government for the warrantless seizure of his emails in June2006, seeking declaratory and injunctive relief. See Warshak v. United States,490 F.3d 455 (6th Cir. 2007) [hereinafter Warshak 1]; Warshak v. United States,532 F.3d 521 (6th Cir. 2008) (rehearing en banc granted, opinion vacated, Oct.9, 2007) [hereinafter Warshak Il]. At trial, the United States District Court forthe Southern District of Ohio granted Warshak's request for injunctive relief,preventing the government from conducting unwarranted searches until finaldisposition of the case. Warshak I at 461. Following the government's appealof the injunction, the Sixth Circuit Court of Appeals heard the Warshak civilcase. Finding the arguments advanced by amici curiae briefs convincing, theSixth Circuit acknowledged the analogy between the recognized privacyinterests in telephone conversations and those in the content of emails. WarshakI at 469-70. Like phone conversations and postal mail, the court reasoned thatthe content of email is a form of private communication that the user seeks topreserve as private, thus warranting constitutional protection:

Turning to the instant case, we have little difficulty agreeing with thedistrict court that individuals maintain a reasonable expectation ofprivacy in e-mails that are stored with, or sent or received through, acommercial ISP. The content of e-mail is something that the user"seeks to preserve as private," and therefore "may be constitutionallyprotected." It goes without saying that like the telephone earlier in ourhistory, e-mail is an ever-increasing mode of private communication,and protecting shared communications through this medium is asimportant to Fourth Amendment principles today as protectingtelephone conversations has been in the past.

Warshak I at 473 (citing Katz v. United States, 389 U.S. 347 (1967)). The courtruled that Warshak did have a valid privacy interest in the contents of his storedemails, an interest protected by the Fourth Amendment. See Warshak, 631 F.3dat 282 n.12; see also Bankston, supra note 14 ("There the 6th Circuit agreedwith [the] EFF that email users have a Fourth Amendment-protected expectationof privacy in the email they store with their email providers. . . ."). A rehearingen banc, however, vacated that decision due to lack of ripeness. Warshak II at523.

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B. Warshak's Criminal Conviction Appeal to the Sixth CircuitCourt of Appeals

On appeal, Warshak argued-among other things-that the exparte seizure of his emails without a warrant was a violation of hisFourth Amendment rights." In response, the government claimedthat any Fourth Amendment violations that did occur were"harmless."o Additionally, the government claimed that the searchand seizure of Warshak's emails was protected through its goodfaith reliance on the SCA.6 1

In a decision applauded by many civil liberties groups,6 2 theSixth Circuit held that Warshak's Fourth Amendment rights hadbeen violated by the government's warrantless seizure of hisemail.6' By compelling NuVox to turn over the contents ofWarshak's emails and taking possession thereof, the governmentviolated what the court found to be a reasonable expectation ofprivacy in stored emails.

The court analogized stored emails to other forms ofcommunication already protected.' Referring to Katz v. UnitedStates"5 and United States v. Jacobsen,66 the Sixth Circuitconsidered the "expectation of privacy" analysis the SupremeCourt previously used to apply Fourth Amendment protections totraditional forms of communication.6" In Katz, the Court foundthat telephone users were "surely entitled to assume that the words... utter[ed] into the mouthpiece w[ould] not be broadcast to theworld,"6 8 leading to a holding that has brought telephone

59 Warshak, 631 F.3d at 282.60 id.61 Id.62 See, e.g., Bankston, supra note 14.63 Warshak, 631 F.3d at 282.64 Id. at 285.65 389 U.S. 347 (1967).66 466 U.S. 109 (1984).67 Warshak, 631 F.3d at 284.68 Katz v. United States, 389 U.S. 347, 352 (1967).

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conversations fully under the shelter of the Fourth Amendment. 69

Extending this doctrine, the Jacobsen court found that "[l]ettersand other sealed packages are in the general class of effects inwhich the public at large has a legitimate expectation of privacy," 70

based on the premise that a search arises any time the government"infringes upon 'an expectation of privacy that society is preparedto consider reasonable.'" 7

The existence of a reasonable expectation of privacy for emailsthus rests on two questions, requiring the court to analyze both theWarshak fact pattern and the relationship between society andemail communication.72 In other words: (1) did Warshak, as thesubject of the search in question, manifest a subjective expectationof privacy; and (2) was this expectation of privacy one that societyat large would recognize as reasonable?3

Looking first at Warshak's subjective expectation of privacyregarding his email account, the court succinctly found that it was"highly unlikely" that he expected his email would be made publicdue to its content, described as "often sensitive and highlydamning." 74 Turning to the question of society's acceptance ofsuch an expectation of privacy as reasonable, the court firstrecognized that "[m]uch hinges ... on whether the government ispermitted to request that a commercial ISP turn over the contentsof a subscriber's emails without triggering the . . . FourthAmendment[,]" given that access to an individual's email accountwould give the government "the ability to peer deeply into hisactivities." Quoting an article by Professors Susan Freiwald andPatricia L. Bellia, the court concluded that "[g]iven thefundamental similarities between email and traditional forms of

69 Warshak, 631 F.3d at 285 (citing Smith v. Maryland, 442 U.S. 735, 746(1979) (Stewart, J., dissenting)).

7o United States v. Jacobsen, 466 U.S. 109, 114 (1984).71 Warshak, 631 F.3d at 284 (citing Jacobsen, 466 U.S. at 109).72 Freiwald, supra note 11 (summarizing the subjective and objective

expectations of privacy analysis undertaken by the Sixth Circuit).n See Warshak, 631 F.3d at 284; Katz 389 U.S. at 361 (Harlan, J.,

concurring).74 Warshak, 631 F.3d at 284.7 Id.

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communication, it would defy common sense to afford emailslesser Fourth Amendment protection." 6 Highly influential to thisconclusion was the indispensable role of email in American societytoday, requiring that it be joined with other "essential" forms ofprivate communication under the protection of the FourthAmendment.

Despite finding that government agents had invaded Warshak'sreasonable expectation of privacy and violated his FourthAmendment rights, his appeal for an exclusionary remedy wasdenied." Following previous decisions involving the SCA andFourth Amendment challenges, reversal was found"unwarranted"" on the grounds that the "agents relied on the SCAin good faith" believing it to be within the bounds of theConstitution, and thus the exclusionary rule did not apply."

76 Id. at 285-86 (citing Patricia L. Bellia & Susan Freiwald, FourthAmendment Protection for Stored E-mail, 2008 U. CHI. LEGAL F. 121, 135(2008) (urging an elimination of unreasonable differences between the treatmentof email and other protected forms of communication)). The court did notelaborate on what these "fundamental similarities" between email and traditionalforms of communication might be, though they did go on to say that "[e]mail isthe technological scion of tangible mail." Warshak, 631 F.3d at 285-86.

n Warshak, 631 F.3d at 286.7 Id. at 288-89. Petitions for rehearing en banc of the Warshak case were

denied by the Sixth Circuit upon a finding that "the issues raised in the petitionswere fully considered upon the original submission and decision of the cases."U.S. v. Warshak, Nos. 08-3997/4085/4087/4212/4229/09-3176, 2011 U.S. App.LEXIS 5007, at *1-2 (6th Cir. Mar. 7, 2011).

79 Warshak, 631 F.3d at 282. Good faith reliance is used as an exception tothe exclusionary rule where an agent acts in "objectively reasonable relianceupon a statute that is later found unconstitutional," based on the idea thatpenalizing the agent for a legislative error does not serve the exclusionary rule'sgoal of deterring Fourth Amendment violations. Id. at 333-34 (Keith, J.,concurring) (citing Illinois v. Krull, 480 U.S. 340, 350 (1987)).

80 Id. Warshak's convictions as well as those of his company were affirmed,as were the forfeiture judgments against him. All of Harriet's convictions wereaffirmed except for conspiracy to commit money laundering and moneylaundering, which were reversed. The proceeds-money forfeiture judgmentagainst Harriet was affirmed, but her money-laundering forfeiture judgmentwas reversed. The sentences of Warshak and Harriet were vacated andremanded for resentencing. Id. at 333.

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IV. DOES WARSHAK UNDERSCORE THE NEED FORCONGRESSIONAL REVISION OF THE SCA?

A. Misuse of the SCA in the Warshak Investigation

One of the more contested issues in the Warshak search wasthe government's use of the SCA to request that NuVoxprospectively preserve emails."' The SCA is considered by manyto regulate only retrospective surveillance of communications,82

leaving the Wiretap Act and the Pen Register statute to regulateprospective communication." Section 2703(f) of the SCA, onwhich the government agents relied to request preservation ofWarshak's emails, explicitly states that a service provider shalltake "all necessary steps to preserve records and other evidence inits possession pending the issuance of a court order or otherprocess."84 By its plain language, section 2703(f) permits only thepreservation of emails in the possession of the service providerwhen the request is made, not the prospective preservation offuture emails used in the Warshak investigation." Governmentagents wishing to compel such prospective surveillance should"comply with the [Wiretap Act and the Pen/Trap statute].""6

As NuVox was, by definition, a remote computing service,"any emails stored with them could have been obtained via warrant,an administrative subpoena, or a court order." However, theemails retrieved by the government under the SCA, via their May

8' Id. at 283.82 KERR, supra note 18, at 256 ("[T]he SCA deals with retrospective

surveillance instead of prospective surveillance.") (emphasis added). But seeWarshak, 631 F.3d at 290, note 21 (stating that "some courts and commentatorshave suggested that § 2703(f) applies only retroactively .... However, thelanguage of the statute, on its face, does not compel this reading.").

83 See supra text accompanying note 19 on the Wiretap Act and the PenRegister statute.

84 18 U.S.C. §2703(f) (2006) (emphasis added).Warshak, 631 F.3d at 335 (Keith, J., concurring).8 6Id. at 335, citing U.S. Dept. of Justice, supra note 27, at 139.

87 Ben Kerschberg, Can the Government Seize Your Email Without AWarrant? You'll Be Surprised, FORBES LAW & TECHNOLOGY BLOG (Feb. 8,2011, 9:26 AM), http://blogs.forbes.com/benkerschberg/2011/02/08/can-the-government-seize-your-email-without-a-warrant-youll-be-surprised-2/.

88 Id. See also supra text accompanying note 29.

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2005 ex parte court order, were actually copies of Warshak'semails made by NuVox as a direct result of the October 2004formal request for prospective preservation; in other words, theseemails would have been deleted from the NuVox server, and thuswould not have been in storage for the requisite 180 days, had thepreservation order to maintain all prospective emails not beenmade by the agents."

This has led some to believe that the SCA was, at best,misinterpreted or, at worst, abused. In an amicus brief, theElectronic Frontier Foundation ("EFF") argued that:

[T]he government blatantly exceeded the scope of the SCA andviolated the Wiretap Act, . . . by secretly compelling NuVox toprospectively "preserve" Warshak's emails, emails that the governmentlater obtained improperly and without a probable cause warrant usingthe SCA's procedures. Put simply, the government misused the SCAto conduct a "back door wiretap" of Warshak's emails and bypass theWiretap Act's strict requirements, including its requirement of probablecause. 90

In a concurring opinion, agreeing with both the results and theapplication of the good faith exception to the exclusionary rule,Judge Keith expressed similar concerns to the methods used:

In practice, the government used the statute as a means to monitorWarshak after the investigation started without his knowledge andwithout a warrant. Such a practice is no more than back-doorwiretapping. I doubt that such actions, if contested directly in court,would withstand the muster of the Fourth Amendment ... .To interpret§ 2703(f) as having both a retroactive and prospective effect would becontrary to the purpose of the statute as a whole .... [A] policywhereby the government requests emails prospectively without awarrant deeply concerns me. I am furthermore troubled by the

"Warshak, 631 F.3d at 335 (observing that "the provider would havedestroyed Warshak's old emails but for the government's request that theymaintain all current and prospective emails for almost a year"). See also supratext accompanying note 49 (explaining that the emails would have been deletedfrom the ISP server once Warshak downloaded them to his personal computer,thus, had no copies been made pursuant to the prospective preservation order,the emails would not have been available on the NuVox server).

90 Bankston, supra note 14. Presumably, as the Wiretap Act prohibits "real-time interception of . . . computer communications," it would preventgovernment agents from simply intercepting Warshak's emails as they werereceived by NuVox. KERR, supra note 18, at 461.

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majority's willingness to disregard the current reading of § 2703(f)without concern for future analysis of this statute.91

The belief that the government has been able to conduct secret,warrantless seizures of email has led many to call for the SCA tobe reevaluated and updated to reflect the holding of the SixthCircuit in Warshak, requiring warrants for the seizure of storedemails.92 Civil rights groups such as the Digital Due ProcessCoalition" and the Electronic Frontier Foundation94 have used theWarshak investigation as a rallying cry, supplying Congress withsuggested reforms and submitting amicus curie briefs to the SixthCircuit in support of Fourth Amendment protection.95

B. Twenty Four Years of Changing Technology: The Need forCongressional Reform

Though the SCA currently has strong restrictions andrequirements for interception, the Warshak case brings to light aglaring loophole. Government agents' use of the SCA tocommand preservation of emails not yet created is not onlyviolative of the Act's overarching mission" but would likely failunder Fourth Amendment scrutiny if directly contested. As noted

9' Warshak, 631 F.3d at 335 (Keith, J., concurring). Judge Keith furtherexplains that he agrees with the majority's holding that the evidence should notbe excluded, as it fell within the good faith exception to the exclusionary rule.Id. at 336.

92 Id. at 288.9 See generally Who We Are, DIGITAL DUE PROCESS COALITION,

http://www.digitaldueprocess.org/index.cfn?objectid=DF652CEO-2552- 11 DF-B455000C296BA163 (last visited Mar. 28, 2011) ("Digital Due Process is adiverse coalition of privacy advocates, major companies and think tanks,working together.").

94 See generally Our Work, ELECTRONIC FRONTIER FOUNDATION,https://www.eff.org/work (last visited Mar. 28, 2011) ("EFF is the leading civilliberties group defending your rights in the digital world.").

95 See, e.g., Bankston, supra note 14; Freiwald, supra note 11 (calling forCongressional reform of the "unconstitutional Stored Communications Act").

96 Warshak, 631 F.3d at 335 (Keith, J., concurring) (stating that the purpose ofthe Stored Communications Act is to "maintain the boundaries between acitizen's reasonable expectation of privacy and crime prevention in light ofquickly advancing technology").

9 Id "I doubt that such actions, if contested directly in court, wouldwithstand the muster of the Fourth Amendment." Id. Though the majority

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by Judge Keith in his concurring opinion, the practice was "nomore than back-door wiretapping," as the statute was used tomonitor the defendant's email without his knowledge and withouta warrant.9 8

If the purpose of the SCA is, as Judge Keith stated, "tomaintain the boundaries between a citizen's reasonable expectationof privacy and crime prevention in light of quickly advancingtechnology," then Warshak is a clear example of the need formodification and fortification of the protective restrictions of thestatute.99 The SCA is limited, in its body, to requiring serviceproviders "to preserve records and other evidence in its possessionpending the issuance of a court order or other process.""oo Nothingin the statute permits prospective email interception without aproper warrant, a conclusion supported by the Warshak court.Thus, an essential first step in mending the loopholes of the statutewould involve expressly forbidding the practice of prospectivepreservation, through Congressional amendment to the SCA. Theconstitutional boundaries need to be clearly laid out, putting an endto the "good faith" reliance loophole around the exclusionary rule,used by the Sixth Circuit in Warshak.10o

The prospective reforms need not end there. The Digital DueProcess Coalition has put together proposals for Congressionalreview of the federal surveillance statutes, spurred by the need forgreater transparency, better notice requirements, and more serious

acknowledges the existence of a potential statutory violation, noting thepreclusion of the SCA to prospective preservation in the Department of Justice'sown computer-surveillance manual, they state that "this statutory violation,whether it occurred or not, is irrelevant to the issue of good faith reliance." Idat 290. As the actual violation at issue was for obtaining the emails, for whichthe agents relied on §§ 2703(b) and 2703(d), any violations of § 2703(f) weredeemed immaterial. Id.

9 Id. at 335.99 Id.'oo 18 U.S.C. § 2703(f) (2006) (emphasis added).101 Although the good faith exception was applied in Warshak, the majority

noted that the loophole is effectively closed after their decision, stating "[o]fcourse, after today's decision, the good-faith calculus has changed, and areasonable officer may no longer assume that the Constitution permitswarrantless searches of private emails." Warshak, 631 F.3d at 289 n.17.

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consequences.'02 Though the warrant requirement now applies toemail in the Sixth Circuit, a congressional amendment couldquickly bring the rest of the nation up to speed, saving judicialresources and expediting the process of patching a statute nowfound to be, at least in part, unconstitutional. 0 3

It is no surprise that the SCA is in dire need of updating. In1986, when the statute was passed, computer networking was "inits infancy."'04 Enacted before the "advent of the World Wide Webin 1990 and before the introduction of the web browser in 1994,"the SCA "is best understood by considering its operation andpurpose in light of the technology that existed in 1986."'0 Thoughthe SCA remains, overall, good law, its application to modemcomputing will involve "extracting operating principles from atangled legal framework." 06 Over twenty-four years oftechnological advances suggest that a statute intended to addresscutting age technology in 1986 is just not going to cut it today.

V. WHERE To Go FROM HERE: THE APPLICATION OFWARSHAK OUTSIDE THE SIXTH CIRCUIT

The Warshak decision is a monumental victory forconstitutional privacy advocates and a crucial first step towardsfederal protection of stored email. However, it is essential to notethat, at this time, the decision is only binding within the four states

102 Freiwald, supra note 11 (calling for greater reforms such as "greatertransparency, notice to users, and meaningful remedies").

103 "[T]o the extent that the SCA purports to permit the government to obtainsuch emails warrantlessly, the SCA is unconstitutional." Warshak, 631 F.3d at288.

104 Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal.2010) (citing William Jeremy Robison, Note, Free at What Cost? CloudComputing Privacy Under the Stored Communication Act, 98 GEO. L.J. 1195,1198 (2010)).

"5 Id. at 971 n.15. See also Konop v. Hawaiian Airlines, Inc., 302 F.3d 868,874 (9th Cir. 2002) (stating that "the difficulty is compounded by the fact thatthe ECPA was written prior to the advent of the Internet and the World WideWeb").

106 Robison, supra note 104, at 1204-05.

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comprising the Sixth Circuit.'o' With no cases on point in othercircuits and the likelihood of an impending appeal,' 8 it remainsunclear how the rest of the nation will treat the Warshak decision.Will other circuits follow Warshak's rejection of the SCA as"inconsistent with the Fourth Amendment"?'"

One of the most efficient ways to broaden Fourth Amendmentprotection to the rest of the nation would be for the Supreme Courtto grant certiorari. Should the Supreme Court uphold the SixthCircuit and find a protection, it would ensure that the sameprotections would be applied in all jurisdictions, guaranteeing vitaluniformity." Alternatively, the issue could be addressed by eachof the remaining eleven circuit courts. Though this could lead tostandardized results, individual circuit opinions risk the occurrenceof a circuit split, with different standards and tests arising in eachcircuit. Additionally, the good faith exception would continue toexist in each circuit until a similar case is heard and decided,creating the potential for future "backdoor wiretapping.""' Thepotential lack of uniformity would undoubtedly cause confusion inan area of law that already has a high potential formisunderstanding," 2 making a more uniform approach highlyfavored. Thus, Congressional amendment of the SCA or SupremeCourt review appears to be, for now, the most favorable scenariosfor extending Warshak nationwide.

107 Kentucky, Michigan, Ohio, and Tennessee make up the Sixth Circuitstates. U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT,

http://www.ca6.uscourts.gov/intemet/index.htm (last visited Mar. 13, 2011).'08Freiwald, supra note 11 (acknowledging the uncertainty of both an appeal

and the result of a prospective appeal).109 Gary Shockley, Snake Oil and Search Warrants, LAW 360 (Jan. 24, 2011),

http://www.law360.com/topnews/articles/219536/snake-oil-and-search-warrants.

11o Of course, there is also the possibility that the Supreme Court wouldreverse Warshak, similar to the possibility of a reversal upon a rehearing enbanc.

11 Shockley, supra note 109.112 See supra note 28 (discussing the complexity of the ECPA).

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VI. CONCLUSION

In his Olmstead v. United States"' dissent, Justice Brandeismade one of the most frequently quoted comments"4 on privacy:

The makers of our Constitution undertook to secure conditionsfavorable to the pursuit of happiness. They recognized the significanceof man's spiritual nature, of his feelings and of his intellect. They knewthat only a part of the pain, pleasure and satisfactions of life are to befound in material things. They sought to protect Americans in theirbeliefs, their thoughts, their emotions and their sensations. Theyconferred, as against the government, the right to be let alone-themost comprehensive of rights and the right most valued by civilizedmen. To protect, that right, every unjustifiable intrusion by thegovernment upon the privacy of the individual, whatever the meansemployed, must be deemed a violation of the Fourth Amendment ....Experience should teach us to be most on our guard to protect libertywhen the government's purposes are beneficent. Men born to freedomare naturally alert to repel invasion of their liberty by evil-mindedrulers. The greatest dangers to liberty lurk in insidious encroachmentby men of zeal, well-meaning but without understanding.' 'i

Although email was not one of the sanctities the SupremeCourt might have considered in 1928, Justice Brandeis's commentrecognizes that future "privacies of life" would become importantas society advanced, necessitating continued expansion of FourthAmendment protection as new types of "sanctities" and newmethods of communication arose.

The Warshak decision underscores the importance of keepingthe Fourth Amendment in pace with our progressive technology.In a world of cloud computing and Google, the concept of anindividual's "papers and effects" is rapidly evolving."' Thequestion of whether the law can keep up remains to be seen."' "Ifcourts are still struggling with electronic mail, how will they

" Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, L.,dissenting), overruled by Katz v. United States, 389 U.S. 347 (1967), and Bergerv. New York, 388 U.S. 41 (1967).

114 Linder, supra note 1 (stating "[t]he most frequently quoted statement by aSupreme Court justice on the subject of privacy comes in Justice Brandeis'sdissent in Olmstead v. U.S.").

"' Olmstead, 277 U.S. at 478-79 (Brandeis, J., dissenting).116 Bagley, supra note 9, at 153." Shockley, supra note 109.

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address the challenges presented by mobile devices, ubiquitousinternet access and cloud computing?"" 8

The most effective approach will likely be for the courts totackle these issues one by one as they prove to be problematic,resolving each question in a way that provides both usefulguidance and necessary flexibility for resolving futuretechnological legal dilemmas. For now, privacy advocates willhave to await the final word on the expectation of privacy withstored emails, in order to determine if the Fourth Amendment willone day apply to everyone's inbox.

118 Id.

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